Nairobi — Alliance for Real Change leader Abduba Dida and independent presidential candidates Michael Wainaina and Japheth Kaluyu now want to be included in the fresh presidential election set for October 26.
This comes after the High Court Wednesday directed the Independent Electoral and Boundaries Commission (IEBC) to gazette Thirdway Alliance presidential candidate Ekuru Aukot as a candidate in the fresh presidential election.
While giving his directions, Justice John Mativo found the electoral commission erred in its decision to omit Aukot's name in a gazette notice for a fresh presidential election ordered by the Supreme Court when it annulled the August 8 presidential election.
"The petitioner's rights under Article 38, 27, and 140 (3) of the Constitution have been and continue to be infringed, violated and/or denied by the first and seconds respondents (IEBC and Chairperson Wafula Chebukati) to include him (Aukot) as a presidential candidate in the fresh elections slated for the 26th September 2017," Justice Mativo declared.
The judge went further to direct IEBC to either amend its September 5 gazette notice in which it listed President Uhuru Kenyatta (Jubilee) and National Super Alliance's presidential candidate Raila Odinga as the only candidates for the fresh poll, or issue a fresh gazette notice.
Dida, Wainaina, Kaluyu and Aukot are among six candidates who took part in the August 8 presidential election but were barred from contesting in the fresh poll in what IEBC later said was a decision taken in compliance with a precedent set by the apex court in the 2013 presidential election petition.
Aukot however contested the gazettement of President Kenyatta and Odinga as the only candidates for the fresh poll, accusing IEBC of misreading the Constitution.
In his objection, Aukot cited Supreme Court orders when it nullified the presidential election held in August, on September 1 and later in its detailed judgment on September 20, in which the court directed IEBC to conduct a fresh presidential election within sixty days in line with the provisions of Article 140 (3) of the Constitution.
Aukot maintained that a new election under the said Article of the Constitution meant that the State House contest was to be open to all interested and qualified candidates arguing an annulment of the previous election implied that an election had not been held.
Aukot's application at the High Court followed a directive by Chief Justice David Maraga who on September 21 declined to hear an application the Thirdway leader had filled at the Supreme Court urging him to seek the interpretation of the Constitution at the High Court.
"The CJ had in fact certified our application as urgent and ordered us to appear in court today but in a change of mind he summoned us at his chambers and told us to go to the High Court to seek the interpretation of Articles 138 (5) and 140 (3)," Aukot's lawyer Elias Mutuma explained at the time.
"The Supreme Court has shot itself in the foot because their determination was based on the fact that the August 8 poll was not done in accordance with the Constitution and therefore all of us who contested in the original election ought to have been in the Gazette Notice," Aukot said following CJ Maraga's directives last month.